Constitutional rights to speak freely and to publish one’s views, free of government censorship.

When most Americans consider the U.S. Constitution, the Bill of Rights, or the Supreme Court, inevitably they think about freedom of speech and freedom of the press. These twin freedoms, expressly guaranteed in the First AmendmentFirst Amendment, represent the quintessential liberties on which the United States was founded. Asked to enumerate the rights protected by the Constitution, the vast majority of Americans would readily name free speech and free press. Asked to articulate what sets the United States apart from all other nations, most Americans would identify these same freedoms.

Officers of the American Civil Liberties Union celebrating a favorable Supreme Court ruling in 1939. Appearing before the Court more often than any other nongovernment organization, the ACLU has often championed free speech.

(Library of Congress)

Respect and pride for freedom of speech and freedom of the press are sincere and heartfelt until tested in the harsh reality of the tumultuous and diverse culture, in which a wide array of political, religious, social, economic, ideological, racial, ethnic, and geographical constituencies are pitted against one another. In that crucible, pious fidelity to “free speech” and “free press” too often gives way to the inevitable qualification.

What inevitably follows is an ever-increasing list of exceptions to freedom of speech and freedom of the press, including not only the small group of exceptions recognized in the law, such as obscenity, libel, fighting words, false advertising, and criminal solicitation, but also newly proposed exceptions, such as hate speech, sexual harassment, offensive or sacrilegious art, and sexually explicit yet nonobscene photographs, magazines, videos, and Internet images.

When it comes to freedom of the press, the general public and the juries on which they serve sometimes ignore the First Amendment and hold books, films, and television shows financially liable for the acts of disturbed individuals and social miscreants who commit suicide, violent crimes, or general mayhem allegedly “inspired” by what they read or saw in a film or on television.

It is in this contentious atmosphere that the Supreme Court continues to serve its historic role in interpreting the meaning, scope, and limitations of freedom of speech and freedom of the press.

Generally speaking, “freedom of speech” refers to the right of individuals to freely express themselves, without fear of government restrictions. “Freedom of the press” refers more to the right of the publishers of newspapers, magazines, and books; the writers and producers of motion pictures and television productions; and the creators and distributors of CDs to sell and distribute these materials, free of government censorship. Beyond this general distinction, for constitutional purposes, scholarly analysis and Supreme Court decisions often merge the two concepts under the rubric “freedom of expression,” frequently applying principles developed in one area to the other. In free press cases, civil libertarians and attorneys will readily cite precedents that advance constitutional protections in free speech cases, and vice versa.

Although the First Amendment speaks in absolute and unqualified terms (“Congress shall make no law abridging…freedom of speech or of the press”), the question has always been what is meant by “freedom of speech” or “freedom of the press.” There is a school of thought, to which only two justices, Hugo L. Black and William O. Douglas, adhered, that holds that with respect to speech and the press, the First Amendment is absolute; it means what it says: “Congress shall make no law…” not “some laws” or “almost no laws,” but “no law.” First Amendment absolutistsFirst Amendment absolutism simply cite the language of the First Amendment and accept no substitutes.

The other school of thought, to which all other justices have subscribed, believes that at the time the First Amendment was ratified, there were certain limited exceptions to freedom of speech and freedom of the press, which were already part of these concepts when they were included in the First Amendment. Thus, for example, in America in 1791, there were libel laws under which people could be punished for what they wrote or said about someone else if it was false and defamatory. Likewise, there were obscenity laws under which publishers could be fined or jailed for selling books or pictures deemed obscene under prevailing standards. Given the existence of these laws at the time the First Amendment was adopted and ratified, the majority view rejects the absolutist approach in favor of an interpretation that affords the broadest sweep of constitutional protection for all subject matter and forms of communications, subject only to limited exceptions.

Consequently, the Court has held that the First Amendment protects motion pictures, radio, television, cable, recordings and most recently the Internet, regardless of the fact that none of this technology existed when the First Amendment was written. No justice seriously argues that the First Amendment is frozen in the eighteenth century in terms of the forms of communications that existed at that time. Instead, the Court takes a functional view of freedom of speech and freedom of the press to encompass any form of communication that provides information much as books and newspapers did in 1791.

A variety of theories have been offered for the protection of freedom of expression. One is that truth is best discovered by the free exchange of ideas. In his seminal 1644 work Areopagitica, John MiltonMilton, John confidently asked that if Truth and falsehood grappled, “Who ever knew Truth put to the worse, in a free and open encounter?” In 1919 Justice Oliver Wendell HolmesHolmes, Oliver Wendell;on truth[truth] wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” No metaphor has proved more lasting in the defense of free expression than the “marketplace of ideas.”

Another important rationale upholding freedom of expression is based on the principles of human dignity and autonomy. The opportunity to freely express oneself develops inner satisfaction and individual fulfillment. In this view, freedom of expression is worthy of constitutional protection as a step toward the realization of self-identity or what Justice Thurgood Marshall called “a spirit that demands self-expression.” This rationale has nothing to do with the search for truth or the advancement of self-government. Instead, it justifies free expression based purely on its benefit to the individual.

At the other end of the spectrum is a rationale based on the common good rather than the good of the individual. Under this view, freedom of expression is indispensable to the progress of self-governance in a democratic society. For citizens to participate fully in their own government they need to exchange information and express their opinions on pending legislation, candidates, and public policy issues. Only open and unfettered communication, free of the distortions produced by government censorship, ensures the viability of democracy.

The final rationale supporting freedom of expression is closely related to the advancement of self-government but focuses on the value of dissent. Whereas the theory of self-governance looks at the role of free expression among those working within the system, the dissent rationale recognizes the value of those who work outside the system. Sometimes referred to as the “loyal opposition,” dissident speech is protected because of the realization that by allowing opponents of the established order to peacefully and freely express themselves, the risk of violent opposition is reduced and hopefully eliminated. Tolerating, or even encouraging, dissent serves as a “safety value” preventing the political system from getting “overheated.”

Disputes over freedom of expression generally pit the rule of the majority against the rights of the minority. The question is whether the expression of ideas deemed dangerous to the purpose of ensuring order, morality, loyalty, or some other important interest valued by society at large should be suppressed. Examples of these conflicts abound through the annals of the Supreme Court.

In the early 1970’s, American Nazis announced their intent to conduct a march through Skokie, Illinois, a suburb of Chicago, inhabited by a large number of Jewish families, including survivors of the Holocaust. The march seemed purposely designed to deeply offend the Jewish community in Skokie.Jews;Skokie, Illinois The city officials took various steps to block the march, but the Nazis, represented by the American Civil Liberties UnionAmerican Civil Liberties Union (ACLU), went to court, claiming they had a right to express their views, regardless of whether they gave offense. The ACLU was attacked for representing such despicable bigots and reportedly lost thirty thousand members. Nevertheless, the ACLU stood by the principle that regardless of whether it disagreed with the Nazis, it would defend their right to speak and march. Eventually, the federal courts agreed that the First Amendment protected the Nazis’ freedom of expression. Ironically, having won the right to march, the Nazis chose not to hold the event.

Another issue is whether the government can deny funding to artists because of the controversial or offensive nature of their work. This issue was squarely presented in 1991 when Congress imposed content restrictions on the grants awarded by the National Endowment for the ArtsNational Endowment for the Arts (NEA), a federal agency established in 1965 to further the progress of the arts. Congressional leaders claimed that artists could create all the controversial art they wanted, they simply had no constitutional right to demand that the government pay for it. Civil libertarians countered that once the government decided to provide funds for artists through the NEA, it could not condition those funds on whether the government agreed or disagreed with the artistic, political, religious, social, or other messages communicated by the art. Eventually, the courts agreed with the artists and struck down the congressional restrictions. The Supreme Court held that the NEA could establish goals encouraging “decency” and respect for diverse American values but could not reject specific works of art based on their controversial content.

Every advance in technology has renewed the battle over freedom of expression. Most recently, the conflict has centered on the Internet, the revolutionary worldwide web. In 1996 Congress passed the Communications Decency ActCommunications Decency Act (CDA) making it a crime to communicate “indecent” material to persons under eighteen years old. The ACLU promptly challenged the CDA, first before a federal three-judge panel and later before the Supreme Court.

The Court had never ruled on a case involving freedom of expression on the Internet. The CDA case squarely presented the question of whether the Internet would enjoy the same wide-open, robust constitutional protection accorded to books, newspapers, and magazines or the more restricted, narrow protection granted to television and radio. In other words, the Court had to decide whether the print model or the broadcast model would apply to the Internet. In 1998 the Supreme Court established the Internet model. The Court found that the Internet was a vast marketplace of ideas entitled to the widest possible constitutional protection. With respect to the CDA, the Court held that the adult population could not be reduced to what is acceptable for children. In the absence of effective age verification technology, the Court found that the responsibility for protecting children from indecent material on the Internet rested with their parents, not the government.

Even before the Internet, sexually explicit speech in books, art, films, and home videos has proven to be a perplexing subject for public debate and Court review. No other area of First Amendment litigation has prompted such heated and persistent controversy, pitting libertines against moralists. By 1968 the Court had adopted a three-part test for defining obscenity: sexually explicit material could not be banned unless it appealed to a prurient, or morbid, interest in sex; exceeded contemporary community standards; and was utterly without redeeming social value.

In 1973, in the case of Miller v. California[case]Miller v. California[Miller v. California], the Court recast the third prong (in an apparent effort to expand the scope of unprotected obscenity). Under Miller, material could be banned if it lacked “serious literary, artistic, political, or scientific value.” Although one leading First Amendment scholar optimistically entitled his 1969 book The End of Obscenity, federal and state governments continue to prosecute material deemed obscene, while at the same time, the adult video business is thriving. Given the power and mystery of sex, on one hand, and the tendency of legislators to pass laws they believe are necessary to protect people from themselves on the other, the controversy over obscenity is unlikely to end in the near future.

The Court held that generally laws that punish defamation do not violate the First Amendment, except when it comes to public officials and public figures. Defamation, which encompasses libel (the written word, as well as radio and television), is defined as a false statement of fact that holds someone up to shame and humiliation. The defamation of a private person implicates little or no First Amendment concerns. However, allowing an individual or a publisher to be punished for attacking an elected official or a celebrity or famous person tends to suppress the sort of public criticism that is at the heart of the First Amendment.

In 1964 the Court faced a historic dispute that presented these important issues in the case of New York Times Co. v. Sullivan[case]New York Times Co. v. Sullivan[New York Times Co. v. Sullivan]. At the height of the Civil Rights movement, a group called the Committee to Defend Martin Luther King took out an ad in The New York Times condemning racism and the actions of the officials in Montgomery, Alabama. One of the officials, L. B. Sullivan, sued for libel and won a $500,000 judgment against the Times. The Court overturned the verdict and established powerful protection for freedom of the press.

In a groundbreaking opinion by Justice William J. Brennan, Jr., the Court held that the freedom to criticize the government was so important, and the possibility that journalists might make innocent mistakes was so great, that defamation suits against public officials could not go forward unless the official proved that the defamatory statement was made with what the Court called “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. Nothing less, according to Justice Brennan’s eloquent opinion, would serve the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Freedom of speech encompasses not only what is spoken and written but also actions that are intended to communicate a message, such as burning a draft card to protest a war or burning a U.S. flag to express disagreement with government policy. Symbolic speechSymbolic speech, as these expressive activities are called, is entitled to constitutional protection when it does not involve violence or destruction of private property, because it conveys, often in a most dramatic fashion, political, social, and other ideas.

In 1989, in Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson], Justice Brennan, speaking for the majority of the Court, characterized as “a bedrock principle underlying the First Amendment” that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Justice Brennan suggested that there was “no more appropriate response to burning a flag than waving one’s own.”

One of the greatest threats to freedom of expression is prior restraintPrior restraint. This term refers to any effort by government to suppress speech even before it is published. The history of England is stained by examples of the Crown preventing books and newspapers from being printed. Indeed, the origin of modern copyrightCopyright laws was a system of royal licensing with permission bestowed only on those publishers favored by the rulers. Many scholars argue that the essential purpose of the First Amendment was to prohibit prior restraint. If so, it has fulfilled that goal admirably because the Court has never upheld a prior restraint. In the landmark case involving the Pentagon Papers, a series of secret U.S. Defense Department studies on the Vietnam War, the Court rejected the request of the administration of Richard M. Nixon to enjoin The New York Times and The Washington Post from publishing the controversial reports. What the king of England could have done with a stroke of a pen, the First Amendment prohibited the U.S. government from doing.

Although American campuses in the 1960’s were a hotbed of freedom and openness, by the 1990’s the antithesis emerged at many colleges and universities in the form of speech codes. These campus regulations prohibited, usually in broad and ambiguous terms, speech that was offensive to women and minorities. However, from the standpoint of freedom of expression, campus speech codesSpeech codes posed a serious threat. With little precedent and even less guidance, neither students nor faculty members could tell what sort of statements could get them in trouble.

Self-censorship out of fear of punishment is often referred to as the “chilling effect” caused by government regulation of speech. Because most people will steer clear of punishment, they will refrain from making statements or publishing material that is constitutionally protected for fear they may run afoul of the government. When this happens, freedom of expression suffers. This is one of the primary reasons that laws or regulations affecting speech must be written with great certainty and cannot be vague or ambiguous.

Campus speech codes were generally far from clear and certain. They usually spoke of speech that was “offensive,” “degrading” or “hostile,” terms that were highly subjective and lacked any objective definition. Consequently, the courts have consistently struck down campus speech codes when they were challenged on First Amendment grounds. Generally, the courts found that controversial ideas were at risk of being censored in the name of combating racism, sexism, and bigotry.

Justice Oliver Wendell Holmes wrote that the true purpose of the First Amendment was to protect the ideas Americans hate. Justice Louis D. Brandeis believed that the answer to offensive speech was more speech, not less. In other words, in a democratic society, committed to freedom of expression, the remedy to social evils is free and open debate.

• Freedom of speech and press is a broad subject that can be explored through studies of the First Amendment, such as Daniel A. Farber’s The First Amendment (2d ed. New York: Foundation Press, 2003) and Geoffrey R. Stone’s The First Amendment (2d ed. New York: Aspen, 2003). Ken I. Kersch’s Freedom of Speech: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003) extends that approach to examine free speech as a fundamental right of ciizenship. Stephen F. Rohde’s edition of Webster’s New World American Words of Freedom (New York: Hungry Minds, 2001) is a concise collection of foundation documents relating to basic freedoms with commentaries. Louis E. Ingelhart’s Press and Speech Freedoms in the World, from Antiquity Until 1998: A Chronology (Westport, Conn.: Greenwood Press, 1998) takes an international approach, covering the concept of freedom of speech and press from ancient times until the modern period. Margaret A. Blanchard’s Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992) also takes a historical approach, covering the concept from the beginning to the end of the twentieth century. The First Freedom Today: Critical Issues Relating to Censorship and to Intellectual Freedom (Chicago: American Library Association, 1984), edited by Robert B. Downs and Ralph E. McCoy, also covers the history of the concept but provides numerous essays examining the modern issues and controversies involving the First Amendment rights. Two books concentrating on the origin and meaning of the First Amendment are The First Amendment: The Legacy of George Mason (London: Associated University Presses, 1985), edited by T. Daniel Shumate, and George Anastaplo’s The Constitutionalist: Notes on the First Amendment (Dallas: Southern Methodist University Press).

American Civil Liberties Union

Brandeis, Louis D.

Brennan, William J., Jr.

Censorship

Constitution, U.S.

Douglas, William O.

First Amendment

First Amendment balancing

Flag desecration

Holmes, Oliver Wendell

Providence Bank v. Billings